Does it really matter? What matters is whether victims are happy with the restitution they are paid. From my article on law:
“This process [the law] of feedback on the choices people make continually drives the gangly process of cooperative, catallactic exchange in dispute resolution closer to a process of pure, catallactic exchange – the act of taking a legal risk becomes, more and more, an entirely conscious trade-off based on calculation of costs and benefits.”
What I mean by this is that the first time two people get into a completely new kind of dispute (say, the technology involved is novel or some unique circumstance has arisen), there is no clearly right resolution of the dispute… instead, the two parties involved may sue and counter-sue in an attempt to maneuver for legal advantage, etc. However, as more cases of this type are heard and resolved by whatever means, some sort of precedent is bound to emerge. Some arguments are bound to “stick” and these begin to take on normative force and become law. As they become recognized as law, the choice of whether to engage in a behavior that is in violation of the law is a conscious tradeoff between costs (if someone sues you) and benefits.
In a private law society, the law is not a list of “Thou shalt nots” to be enforced at any cost. Rather, it is a body of knowledge regarding the reasonable and effective resolutions of disputes and the conscious use of this body of knowledge by the individual making cost-benefit tradeoffs is not only allowed but desired. The Thou-Shalt-Not approach to law is symptomatic of the State. Its dictates are rigid and ideological. They must be of the form Thou-Shalt-Not because of what the State pretends to be… the Enforcer and Creator of Social Order.
If the State said “you can speed as much as you like and we won’t take your license away but it will cost you $100 for every 10 mph you go over the speed limit each time we catch you”, this would be inherently deligitimizing of the whole concept of a speed limit. It would make it clear just how arbitrary and useless speed limits are. Instead, the speed limit is issued as an unquestionable dictate which has been crafted as the result of a long process of deliberation by the appointed and wise caretakers of society.
Private law is completely different. There are no “speed limits” in private law, there is only individual judgment, prudence and unlimited legal liability. It is then up to the individual to weigh the potential that his chosen course of action will result in a costly lawsuit against the benefits he expects to gain by engaging in it. The potential for human flourishing that would be unleashed by a transition to private law society is impossible for us to comprehend. Just like entrepreneurs take business risks and weigh the expected chances of bankruptcy against the expected benefits of success, we would see the same kind of calculation process applied to every aspect of human life under private law.
Clayton -